Old amendment, never filed w/county!

Florida specific; if the a bylaw was changed by a homeowner vote in accordance with CC&Rs/Bylaws BUT never filed with the county, it is my understanding it is NOT valid. BUT, can the Board retroactively go back and file the amendment with the county, thereby making it valid?

The amendment in question was a Board change from 5 to 7 members. Since the homeowner vote 3 years ago to make the change, the Board has been operating with 7 members. The change was never filed. Per our attorney, our CC&Rs/Bylaws state it should have been filed with the county.

FYI; the Board wants to return to 5 members due to lack of interest/empty seats.

Our Bylaws give a range. No fewer than 3 and no more than 5. This way, if there is enough interest from the membership the seats above the minimum may be filled but aren't required to be.

Jennifer,

You mention CC&R's and bylaws as if they are one in the same.

CC&R's generally are restrictions on how property may be used and contractually join a property owner to an association. CC&R's are recorded at the county or city level. The most common method for amending CC&R's is to obtain the required number of signed owner approvals and recording the approvals with the county or city. Unless your CC&R's dictate the number of directors, there would be no reason to amend the CC&R's to go to a larger or smaller board.

Bylaws are the rules of how the association will operate. This is where I would normally expect to find the details about how many directors. This varies from one state to another but generally bylaws do not require being recorded.

Based on personal observation, no association needs more than five board members. My county board of supervisors has five members and that seems to be plenty to run the whole county of hundreds of square miles. Why should an HOA whose size is measured in acres need more directors than the county?

Jennifer,

Neither FL 720 or FL 617 (corporate law) require the Bylaws to be recorded with the State or County. They can be recorded but are not required to be recorded.

Only Condominiums, governed by FL 718, are required to have the Bylaws to be recorded as an attachment to the Deed.

Are any versions of your Bylaws recorded with the County or State?

Since your Bylaws are not required to be recorded, the amendment, providing it was distributed to all members, should be valid. Now, if any version of your Bylaws have been recorded, an argument could be made that the amendment isn't valid because it wasn't recorded. Of course, that challenge should come from a member and not from the Board.

My advice is that you should check to see if a version of the Bylaws are recorded. If they are, update them. If they are not, don't worry about it. Either way, comply with the Bylaws you have been using.

Since FL laws do not require them to be filed, unless your own governing documents require filing, the fact that your amendment isn't filed shouldn't make that amendment any less valid. However, not having the amendment filed when the Bylaws are does give more weight to any argument to invalidate the amendment until it's recorded.

Since the amendment was properly adopted by the Association, the current Board has a duty to comply with it. The current Board, now knowing that the amendment wasn't filed, should also file the amendment to minimize any challenge to the amendment in the future.

If the Board desires to amend that amendment, it should follow the proper procedures to amend the Bylaws.